Opinion
12-P-1954
11-20-2015
COMMONWEALTH v. CENGIZ YILDIRIM.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant was convicted of various drug offenses. The charges stemmed from an investigation conducted by the Massachusetts State police narcotics unit in Suffolk County which consisted of, among other things, controlled purchases of cocaine from the defendant by an undercover police officer and the execution of a search warrant at the defendant's home, during which the police found more than $4,000 in cash and over 200 grams of cocaine. Additionally, following his arrest, the defendant incriminated himself in a recorded statement to the police. On appeal, the defendant does not contest the sufficiency of the evidence but claims that (1) the judge erred in denying his motion to suppress the cocaine and other items recovered from his apartment during the execution of the search warrant, (2) the jury were improperly exposed to an extraneous influence, (3) counsel provided ineffective assistance by failing to move for a mistrial, (4) his right to cross-examine police witnesses was unduly restricted, (5) the Commonwealth failed to disclose exculpatory evidence, and (6) his motion for postconviction discovery should have been allowed. None of these contentions merits reversal of the convictions.
The defendant was convicted on three counts of distribution of cocaine, one count of trafficking in fourteen grams or more of cocaine, and one count of trafficking in 200 grams or more of cocaine. The Commonwealth filed a nolle prosequi on four related school zone charges and on the subsequent offense portions of the indictments charging distribution of cocaine.
Discussion. 1. Motion to suppress. Prior to trial, the defendant filed a motion to suppress evidence seized at his residence on the ground that the affidavit submitted in support of the search warrant failed to establish a nexus between the alleged criminal activity and the place to be searched, i.e., his home. Following a hearing, a judge of the Superior Court denied the motion in a written memorandum of decision. There was no error.
Like the motion judge, our inquiry "is restricted to an examination of the information within the four corners of the affidavit." Commonwealth v. Foster, 471 Mass. 236, 241 (2015). To search a suspect's home, more is required than probable cause to believe that the suspect committed a crime; the search warrant also "must provide a substantial basis for concluding that evidence connected to the crime will be found on the specified premises." Commonwealth v. Escalera, 462 Mass. 636, 642 (2012), quoting from Commonwealth v. Donahue, 430 Mass. 710, 712 (2000). See Commonwealth v. Foster, 471 Mass. at 241 ("Where the location to be searched is a residence, probable cause exists only if there is specific information in the search warrant affidavit to show a 'sufficient nexus' between the criminal activity and the residence").
Here, the search warrant application was supported by the affidavit of Scott Cooper, a State trooper with experience and special training in drug investigations. The affidavit sets forth particularized information from which it may be inferred that the defendant was using his apartment as a base of operations for a drug delivery business. Trooper Cooper averred that he learned from an informant that the defendant, who had prior drug convictions, was selling cocaine in the Boston area. Over the course of the next several weeks, an undercover officer purchased cocaine from the defendant on three occasions. On two of those occasions, June 17 and June 29, 2010, surveillance officers observed the defendant leave the building in which his apartment was located shortly after agreeing to meet the undercover officer for the purpose of selling cocaine to her. The defendant walked from his apartment building directly to the meeting place. After making the sale, he went into a store, emerged moments later with a shopping bag, and walked directly back to his apartment. In conversations with the undercover officer, which were recorded, the defendant described his business as involving the sale of high quality powder cocaine and stated that he could sell an ounce of cocaine to the undercover officer without advance notice. The affiant also stated that the officers conducting surveillance of the defendant's apartment building on several dates between April and June, 2010, observed the defendant meet briefly with various individuals who entered from the street into the foyer area and then quickly departed. These facts were sufficient to establish probable cause to believe that drugs would be found in the defendant's apartment. See Commonwealth v. Clagon, 465 Mass. 1004, 1006 (2013). The motion to suppress was properly denied.
2. Extraneous influence on jurors. During the trial, a clerk explained in a note to the judge that he observed an attorney nodding in the back of the court room, signaling yes and no during the cross-examination of the officer who, working undercover, had purchased cocaine from the defendant. The judge began watching the attorney and personally did not observe any gestures. The attorney was known to the judge as an employee of the office of the Attorney General and as a former assistant district attorney. The judge disclosed this information to the parties and offered defense counsel an opportunity to discuss the issue and to seek relief from any perceived prejudice, but no relief was requested and no further action was taken. The defendant now argues that the judge had an obligation to investigate, sua sponte, whether the alleged gestures influenced the jury's evaluation of the testimony.
The record does not suggest that the jurors knew the person was an attorney or how he was employed.
When a judge is presented with a claim that the jury has been exposed to an extraneous influence, he must determine whether the extraneous material has the potential to prejudice the jury and, if so, he must conduct a voir dire examination of the jurors. Commonwealth v. Tennison, 440 Mass. 553, 557 (2003), citing Commonwealth v. Jackson, 376 Mass. 790, 800 (1978). See Commonwealth v. Amran, 471 Mass. 354, 363-364 (2015). The necessary prerequisite, that the judge be presented with a claim of influence on the jury, did not occur here. The clerk communicated to the judge that a person at the back of the room was gesturing, but not that the jurors observed the gestures. Without any information in the record indicating that one or more jurors observed the attorney's gestures, we cannot say that the jury were exposed to any extraneous influence requiring the judge to take further action.
3. Ineffective assistance of counsel. In a related argument, the defendant asserts that trial counsel was ineffective for failing to request an investigation into the purported extraneous contact with jurors, and that counsel should have moved for a mistrial. The defendant raises his claim of ineffective assistance on direct appeal, based solely on the trial record. Such a claim is in its "weakest form." Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). Claims of ineffective assistance should be raised through a motion for a new trial, where an appropriate factual record can be developed. See Commonwealth v. Zinser, 446 Mass. 807, 810-811 (2006). Assuming without deciding that a reasonable attorney would have requested an inquiry into the circumstances, the record does not support the conclusion that an inquiry would have uncovered any extraneous influence on the jury. Simply put, without the benefit of additional information, we cannot determine whether trial counsel was ineffective as alleged. The defendant therefore has failed to meet his burden. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).
4. Restrictions on cross-examination. The defendant argues that the judge impermissibly restricted his ability to cross-examine three law enforcement witnesses about the role of an informant, David Ring, in the investigation. The defendant contends that the judge prevented him from exposing bias and undermining the credibility of the witnesses and presenting his theory that the drugs found in his home actually belonged to the informant.
The defendant's right to cross-examine prosecution witnesses under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights is well established. Commonwealth v. Allison, 434 Mass. 670, 681 (2001). However, the judge has discretion to limit cross-examination in certain circumstances, including, as here, where such questioning includes a collateral matter and where the theory of defense is too speculative. See Commonwealth v. Avalos, 454 Mass. 1, 7 (2009), and cases cited. The defendant has the burden of demonstrating that the judge abused his discretion. See ibid.
Based on his representation that the defendant would testify and claim that a large amount of the cocaine found in his apartment belonged to David Ring, trial counsel was permitted to ask the witnesses about Ring's role in the investigation. Counsel was not permitted, however, to solicit information from the witnesses about Ring's prior criminal history. The defendant argues that the witnesses likely had knowledge of Ring's criminal history (whether or not the knowledge was second-hand) and that such information was relevant because it would support the argument that the cocaine found in the defendant's apartment belonged to Ring. We discern no abuse of discretion.
Ultimately, the defendant did not testify.
The testimony that trial counsel sought to elicit involved a collateral matter, and the purported theory that the cocaine belonged to Ring lacked any basis in the record. See Commonwealth v. Sperrazza, 379 Mass. 166, 169 (1979) (judge may limit cross-examination on collateral matter); Commonwealth v. Tam Bui, 419 Mass. 392, 401-402 (1995), cert. denied, 516 U.S. 861 (judge may limit cross-examination where theory of defense is too speculative); Commonwealth v. Scott, 470 Mass. 320, 328-329 (2014) (evidence of third-party culprit may be excluded if "too remote or speculative"). Furthermore, the defendant "was granted adequate license to cross-examine Commonwealth witnesses as to" their personal knowledge of Ring and to present evidence supporting his defense. Commonwealth v. Avalos, 454 Mass. at 11.
5. Exculpatory evidence. The defendant filed a motion to dismiss on the third and final day of trial, claiming that the Commonwealth improperly withheld exculpatory evidence regarding Ring's status as an informant and an outstanding loan on the defendant's vehicle. The motion was denied. The defendant argues the judge erred, claiming that the Commonwealth had an obligation to disclose the fact that Ring was an informant prior to trial. Additionally, the defendant asserts that the Commonwealth improperly withheld information that the vehicle he drove, which was registered in the name of his girl friend, carried an outstanding loan, despite the testimony of the undercover officer that the defendant claimed to have paid cash for the vehicle.
In order to prevail on a motion to dismiss for failure to disclose exculpatory evidence, "the defendant must establish that the evidence existed, that it tended to exculpate him, and that the prosecution failed to deliver the information." Commonwealth v. Schand, 420 Mass. 783, 787 (1995). The defendant also has the burden of showing "that a substantial basis exists for claiming prejudice from the nondisclosure." Id. at 787-788, quoting from Commonwealth v. Tucceri, 412 Mass. 401, 412 (1992).
Even if we were to assume that the evidence was exculpatory and that it was improperly withheld by the Commonwealth, which we do not, the defendant has nonetheless failed to demonstrate any prejudice. It is apparent from defense counsel's cross-examination that the defendant had personal knowledge of Ring's involvement with the police, and the defendant also clearly had knowledge of the fact that he did not pay cash for the vehicle. In any event, the information at issue was known to the defendant at trial. There was no error in the judge's order denying the defendant's motion to dismiss for failure to disclose exculpatory evidence.
The record indicates that the prosecutor knew nothing about David Ring's involvement in the case prior to the cross-examination of Commonwealth witnesses by defense counsel.
The undercover trooper testified that during a controlled buy, the defendant asserted that he paid cash for his BMW. On cross-examination, it became clear that the trooper had knowledge of an outstanding loan for the purchase of the vehicle.
The judge denied the motion in a margin endorsement, supplemented by a statement during the sentencing hearing that the jury heard the evidence at issue and therefore the defendant could not demonstrate prejudice.
6. Postconviction discovery. Following his convictions, the defendant filed a motion for discovery seeking information regarding the involvement of all informants, including Ring. See Mass.R.Crim.P. 30(c)(4), as appearing in 435 Mass. 1501 (2001). The motion was denied, without a hearing, in a written memorandum of decision. We review for abuse of discretion. See Commonwealth v. Stewart, 383 Mass. 253, 261 (1981).
A judge may allow a motion for postconviction discovery where, through affidavits submitted pursuant to Mass.R.Crim.P. 30(c)(3), the defendant "establishe[s] a prima facie case" that a new trial is warranted. Mass.R.Crim.P. 30(c)(4). Here, the defendant did not submit an affidavit and did not establish a prima facie case for relief. The defendant did not offer evidence suggesting that Ring's involvement in the investigation extended beyond what was revealed at trial. As the judge noted, the defendant knew of Ring at the time of the trial and had the opportunity to introduce additional evidence of his involvement.
Given our conclusions, the defendant's argument that the accumulation of alleged errors requires reversal of his convictions also fails.
Judgments affirmed.
Order denying motion for postconviction discovery affirmed.
By the Court (Vuono, Agnes & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 20, 2015.